From Human Rights to Fundamental Rights.
Consequences of a conceptual distinction.
GIANLUIGI PALOMBELLA
LAW No. 2006/34
From Human Rights to Fundamental Rights.
Consequences of a conceptual distinction.
G
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Abstract
This article introduces a peculiar distinction between “human” rights and “fundamental” rights, explaining through diverse areas, the role that the difference can play. Rights are loaded with contrasting properties and burdens, opposing features and values (neutral, pre-political, negotiable, democratic, etc.). On the contrary, we should accept -on one side- human rights as moral visions of what is due to human beings, deontological imperatives, even if abstract. But on the other side we cannot ignore the ethical problems: e.g. those resulting from their blind implementation. We need to enhance the institutional, legal and ethical-political meaning of “fundamental” rights, i.e. those which are assigned a meta-normative role in a legal order and an ultimate value in the corresponding social and ethical context. The article shows also how the use of these definitions can clear some theoretical misunderstandings, improve our critical analysis and help in explanation of real processes. This article will be published in “Archiv für Rechts- und Sozialphilosophie”, in 2007
Keywords
From Human Rights to Fundamental Rights.
Consequences of a conceptual distinction.
Gianluigi Palombella
•
1. The discordant properties of rights.
Generally speaking proponents of human rights begin with abstract assumptions, which aspire to universal validity. Even when they renounce an absolute foundation, they nonetheless consider human rights to be an essential prerequisite of coexistence, irrespective of the way in which it subsequently orientates its goals. The abstract quality of human rights is the necessary condition of their aspiration to or presumption of “universality”. In spite of international (or European) treaties and declarations, which aim to manifest themselves in nuclei of “positivised” rights, the deontological, and therefore Kantian, principled, categorical and pure emphasis of human rights is testament to their “moral” force. The strength of human rights lies in the fact that they are after all a philosophy. If it is true that they presuppose an ontology, an epistemology, an anthropology, a vision of justice, their persistent abstractness may also function as a kind of permanent critical principle. By contrast, as many commentators argue, human rights have had, and continue to maintain, an individualist and liberal meaning: their neutral language has also assisted in the perpetuation of forms of domination (as has long been argued e.g. in the feminist tradition, in relation to gender based domination1);
and today the question of rights in general seems to be double edged sword, being motivated by the undisclosed interests of the West, or at least of part of it, yet ringing with humanitarian proclamations.
• Gianluigi Palombella, Professor of Legal Philosophy, Head of Department “Studi Giuridici e Sociali”,
Via dell’Università 12, PARMA (Italy) and Fernand Braudel Senior Fellow, European University Institute, Florence. Email: glpalomb@unipr.it
1 In contrast to those based on sex, differences based on “gender” are a social construct. Thus
gender-neutral policies tend to reproduce hierarchies and discrimination (see D. L. Rodhe, Justice and Gender, Cambridge (Mass.) 1989; or C. MacKinnon, Crimes of War, Crimes of Peace, in S. Shute, S. Hurley (eds.), On Human Rights, New York 1993, 83-109 ).
2
Making a range of concessionsto the critics of human rights, and in an attempt to propose a reasonable reconstruction, Michael Ignatieff brought the thin nature of human rights2 to the forefront in his “apology”:3 they concern the conditions of negative
freedom, and are equated with that which is right, and not to that which is good. ”People may enjoy full human rights protection and still believe that they lack essential features of a good life”.4 This covers the minimum conditions for any type of
life. “Human rights are universal, not in the sense of being a vernacular of cultural prescriptions, but rather as a language for the bestowal of moral power. Their role is not that of endowing culture with a substantive content but of seeking to condition all actors in such a way that they can liberally fashion that content”.5 At the same time,
rather than as the cutting rigidity of deontological arms, human rights must be conceptualised as the content of a politically moulded deliberation perceptive toward consequences: according to Ignatieff, human rights are therefore “a form of politics”6
which must introduce moral ends into reality; moreover the rights are “political” because they imply a confrontation between the holders of the rights and the holders of power.7 This means that “human rights is the only universally available moral
vernacular that validates the claims of women and children against the oppression they experience in patriarchal or tribal societies; it is the only vernacular that enables dependent persons to perceive themselves as moral agents and to act against practices – arranged marriages, purdah, civic disenfranchisement, genital mutilation, domestic slavery and so on – that are ratified by the weight and authority of their cultures”.8
As I will argue in greater detail below, I believe that this political and teleologically oriented character of “human” rights, which I have recalled in the argument proposed by Ignatieff, conflicts with the definition of its neutral, thin, preliminary, moral nature: the latter would imply simply a coherent deontological struggle, or in other words a “categorical” (and thus not politically negotiable) struggle. Therefore this theoretical presentation of human rights exposes its flank to recurrent objections. Given this state of play who underlines9 the ideological and in any case
2 A significant contribution on the nature of human rights – leading in part in a similar direction - is
offered by J. Rawls, The Law of Peoples, Cambridge (Mass) 1999, 78-81.
3 M. Ignatieff, Human Rights as Politics and Idolatry, Princeton 2001. Significantly, a “reasonable
apology of human rights” is the title given to the Italian edition of Ignatieff’s book: Una ragionevole
apologia dei diritti umani, Milan 2003)
4 Ignatieff, loc. cit., 55.
5 Ivi, 75. This argument is also proposed by S. Veca, La priorità del male e i diritti umani (in the article
accompanying the Italian edition of Ignatieff, loc. cit.) who associates minimum justification with an awareness of the “priority of evil” (human rights after the holocaust clarify their sense) and attributes to human rights the capacity to highlight and focus on the “reasons of the non eligibility of a life” (ivi, 120, cf. also 123 ). Veca consistently concludes that human rights must at this stage however be considered as trump cards (ivi, 133).
6 Ivi, 26. 7 Ivi, 69. 8 Ivi, 70.
9 As for example does D. Zolo, Fondamentalismo umanitario, in the article which follows the Italian
ethically loaded character of human rights, on the presumption that Ignatieff’s definition is incorrect, will not encounter difficulties: rights are anything other than minimum or empty, but are rather the expression of ethical ideals that are much more “loaded” than the restitution of negative liberty may appear (even though this however is nothing other than a representation of individualistic cultural ideals, which in turn conflict with collective rights).10
The stance adopted by Ignatieff illustrates with particular clarity an intrinsic
impasse which seems to me to be even more in evidence due to the theoretical
inadequacy of a linguistic and conceptual use of expressions “human rights” and “fundamental rights” as equivalent and interchangeable. On this view human rights are a minimum, Kantian, neutral, transcendental, moral, deontological condition, but they are also at the same time a structure of values, ethically framed, politically negotiable and consequence-sensitive; they are individualistic but at the same time are conditions of collective unities.
These qualities and these diverse status may be attributed to rights in general, but in the end they cause their collapse. These different groups of propriety are relevant in the evaluation of questions of protection, in the discussion of cultural rights, equality or discrimination. But if we want to understand them we must identify two “theoretical” types of rights, namely fundamental rights alongside human rights, perceiving them as two different conceptual ways of talking about rights, and to which these groups of connotations may be separately referred.
I have argued elsewhere 11 that expressions such as human rights and fundamental rights should not be considered as equivalent and interchangeable, and that it is important to appreciate the diversities in their meaning, precisely in order to have at our disposal less “flat” conceptual instruments to carry out various tasks, fend off a range of attacks, and also identify the many aporias, which encumber rights.
Generally speaking, human rights are – or at least one would prefer that they are – also “fundamental” rights: this should mean that a given society considers the protection of human rights essential. It would appear that, if this is not a tautology, human rights are also fundamental, (if and) because they posit at the basis of our life in
common, and they are concretely implemented through the fabric of an organised social
system. Any change in fundamental rights’ model would result in a change of the societal model. As human rights they are therefore “abstract”, whilst as fundamental rights they cannot be so. In order to propose a description of fundamental rights it is necessary to accept the burden of establishing that a specific core of rights (including, where appropriate, “human” rights) plays a pivotal role in a society or in a social system, such as to constitute a basic pillar within it, and an objective which orientates institutions and policies.
10 Zolo, Fondamentalismo umanitario, cit., 145 et seq.
When they are also fundamental, human rights – which are in themselves philosophical conceptions about human beings – at the same time form part of a conception of both man and social system: a kind of social system which necessitates the inclusion of human rights protection within the rules of the game and among its own constitutive and essential obligations. A theory of “human” rights, in itself, concludes by bringing a deontological claim, concerning that which we owe to human beings, and which is linked at least to a moral theory and probably also to an anthropology12. A
theory of “fundamental” rights by contrast obliges us to focus also on that which is capable of contributing to the existence of a society (or also to recommend them as that which could or should do so): this involves analysis or prescriptions which are not expressed in deontological terms, but in ethical, institutional, political or teleological terms. Fundamental rights must be concretised just as human rights must be considered in the abstract.
In the area of human rights it is possible to make philosophical choices that are quite subtle and also consistent with a broad range of potential justifications invoked as support.13 The difference of viewpoints relates not to non-Western countries but also
those western countries which adopt different perspectives: one amongst many examples concerns the forms of protection or of international justiciability. The opposition of the United States14 to global agreements on environmental policy or to the
establishment of international courts for the defence of human rights, or its frequent use of the death penalty constitute a sufficiently eloquent example. A universal consensus on “universal” rights is often lacking: at times it is the case that conceptions of that which is deontologically owed to human beings diverge. Nonetheless, this only skirts around the real issue. Disputes between particularism or relativism and universalism of rights have over the last decades15 have betrayed their own sterility: at best it is possible
to present only inconclusive proof in favour of one of the other position; hence there
12 This deontological status is in turn understood in different ways. For example, in the sense proposed
by Michael Perry for human rights: identifying "what ought not to be done and what ought to be done for human beings" (M. Perry, The Idea of Human Rights, Oxford 1998, 56). A substantive neo-Aristotelian or neo-Thomist philosophy of an analytical nature, such as that of John Finnis, for example, makes the question of (natural) human rights converge into an objective order of goods, participation in which, in a just manner, delineates the common weal and also the welfare of the individual in the community (J. Finnis, Natural Law and Natural Rights, Oxford 1980).
13 In the process of drafting the UN Charter, Eleanor Roosevelt is granted the merit of having facilitated
a “thin” agreement despite often deep differences in philosophical, ethical and political positions (Ignatieff himself discusses the overall event of the framing of the Universal Charter: Human Rights
as Politics and Idolatry, cit., 77-92). The thin nature of this agreement is synonymous with its abstractness, understood in this case as a lack of greater connotation. According to Mary Glendon, Foundations of Human Rights: The Unfinished Business, American Journal of Jurisprudence, 1999, 3: “The Framers of the Declaration did take account of the diversity of cultures by leaving room for a legitimate pluralism in interpreting and implementing its open-ended principles”.
14 Ignatieff , Human Rights as Politics and Idolatry, cit., 12-14.
15 Naturally, harks back in time at least to the debate amongst the framers of the universal declaration.
Mary Glendon refers to this in her paper (Foundations of Human Rights, cit.) noting that critiques based on cultural relativism in reality are motivated by a false proposition, according to which “universal principles must be implemented in the same way everywhere” (ivi, 7).
may be a legitimate suspicion as to whether the discussion concerns an incorrectly formulated frame of reference.
In reality, since we only have available the notion of universal “human” rights (still understood as a direct equivalent of the expression “fundamental” rights), these oppositions and these differences appear only as philosophical questions, whilst in actual fact they are “real” questions. And even when there is agreement on the unassailability of human rights, understood as a moral question, there is still to complain of the ideological use of rights or of their weak justiciability.
In order to remain consistent, human rights (in contrast to the view proposed by Ignatieff) should in fact be conceptualised as trump cards16 precisely because moral rights must (for Dworkin and for Habermas) be attributed to individuals on the strength of arguments of principle and entirely independently of any policy consideration. Habermas too, in framing the relationship between the rights of individuals and collective goods, has often taken for granted that individual rights can be set aside by political goals only when the latter are justified in terms of the defence of further individual rights, in other words following the argument of Ronald Dworkin.17
In fact, a theory of human rights is referred by definition to human beings and is capable of identifying that which in terms of (essential) justice should be due to every human being. Therefore, why such theory of rights should shrink back from advocating their priority and ultimate value? Why should it not require them to be trump cards, claims from which no derogation is possible, claims which cannot “lose”? A coherent theory of human rights must consider them to be trump cards. Human rights are those which should not be “negotiated”. By the same token, just as human rights involve a question of principles rather than policies, they do not involve political questions nor the aims of divergent community ethics, in relation to which “human” rights must boast an independence or a principled “superiority”.
This of course makes it very difficult to argue that, although they are not negotiable, they may have some political content following a specific (and contingent) public debate. Nonetheless, Habermas himself has stressed the “democratic” development of the universality of rights;18 he has recognised the importance of the
ethical-political “self-clarification” of the meaning of rights demanded by communitarianism, whilst at the same time attempting to maintain the necessarily moral and individual character of the rights themselves.
In an attempt to square the circle, a double and indecisive nature is introduced. If therefore Habermas believes rights are trump cards before the Courts, as well as entities the substance of which is politically elaborated, Ignatieff reaffirms their minimum (and ultimately “neutral”) content but then he opts out their value as winning claims in return for a reasonable, pragmatic, and political, inter-subjective clarification
16 R. Dworkin, Rights as Trumps, in J. Waldron (ed.), Theories of Rights, Oxford 19957
, 153-67.
17 J. Habermas, Struggles for Recognition in the Democratic Constitutional State, in Ch. Taylor (ed),
Multiculturalism: Examining the Politics of Recognition, Princeton 1994, 123-4.
of their meaning and scope. As will be argued below in relation to this point, the theoretical debate does not assist us in an identification of coordinates for resolution. I shall attempt to establish the expediency of other means, and at the close of this article I will turn again to the reasons for this aporia.
2. Human rights and ethics
Such difficulties would not be encountered if we undertake a separation of human rights from fundamental rights: according to the definition proposed here only the latter are located on the ethical-political plane; I have also elsewhere proposed the argument that the content of rights is ethical-political when they are elevated to a substantive criterion to which both public and private actions must conform.19In such cases, the issue is no
longer whether we are dealing with moral rights to which the courts must give priority and justify ex post with principles arguments. The issue is rather that normative ideals which have effective priority within a social order and have become, as I shall argue below, part of its rule of recognition, attain such status if they are pursued in any case both in the administration of justice, as current ethical criteria, as well as in the definition of fundamental political goals.
Although this different denomination has just a prized analytical and conceptual utility, I maintain that in contrast to that of “fundamental” rights, a theory of human rights has an essentially moral status. Within this context there is a difference between morals and ethics: ethics in fact consists of a scale of values, possessed both by individuals and groups, and which sets out the ultimate and hierarchical priorities of their agendas.20
On this point there is in the final analysis a broad, though at times only apparent, consensus. On the good-right pair, contemporary liberal thinking responds to the communitarian critique, and other criticisms of the inconsistency in separating the rights from the good21. This distinction is effectively useful, also for justifying the
19 Palombella, L’autorità dei diritti, cit., ch. IV.
20 This distinction is currently operated within liberal Anglo-Saxon moral literature. Naturally there are
numerous arguments on which the distinction operates, which can include the very idea of moral autonomy of Kantian inspiration. In any case, when conceptualised as a question of justice, in the general sense of that which is due to each person as a human being, human rights can formulate more or less tenuous and more of less vague catalogues, yet nonetheless claim to represent an irreducible universality: they do not (or at least they should not) take on the burden of choosing “ethics”. It is however true that catalogues of rights, or international treaties are already an institutional instrument and as such are subject to convergent interpretative disputes, which leads to their encumbrance with objective cultural contents every time they receive some kind of “application”.
21 Scholars like A. MacIntyre, M. Sandel or Ch.Taylor, among others, hold that substantial moral
principles are a non-eliminable component of our view of justice, while "fundamental" rules are never independent of traditional, culturally conditioned, "teleological" conceptions of human nature. Even "autonomy" itself can be understood from a communitarian standpoint above all in relation to the values, substantive ideals and personal goals for whose achievement it is exercised. (Alasdair C. MacIntyre, After Virtue. A Study in Moral Theory, Notre Dame (Ind.) 1984; Id., Whose Justice?
Which Rationality?, London 1988; Ch. Taylor, Sources of the Self, Cambridge 1989; Id., The
notion that the viewpoint of individuals cannot be absorbed into that of the community, within which the “good” is established, and in which individuals formulate their cultures, preferences and identities22. The existence of margins of justice, the necessity
of an inter-subjective morality, equal consideration and respect, depend on a conceptual form that is not reducible to the declination of the “good”: within this form develop the conditions to defend ethical diversity, and put in place reasons against intolerance, and totalising or fundamentalist ethics.23
The rights which we are talking about, if we are thinking of conceptions of human rights, tend to salvage themselves gaining acceptance to the universality of justice rather than to particular ways of living a good life.
However this privileged status proves to be too simplistic when measured against reality. Above all it seems to be excessively detached and distant from reality.
Let us assume that there is some transcendental purity of the minimum essential “human” rights of individuals: they perhaps concern autonomy, as Ignatieff or Engelhardt24 also writes, to cite contributions in two apparently distant fields (namely
international relations and bioethics). And it is particularly useful to distinguish the conditions of autonomy when dealing with issues of protection: and in particular the protection of the rights of weaker categories. What sorts of guarantees should they receive? What can they expect? The aspiration to a viewpoint that is detached from ethical disputes is justified, if for no other reason than that of establishing a moral border and defining a limit, in favour of weaker categories, that cannot be superseded by new utilitarian, communitarian, majoritarian, contingent or any other type of argumentation.
Notable attempts to determine this boundary include the thesis which separates autonomy understood as the typically human faculty of choice, in the Kantian transcendental sense, from individual autonomy as an objective, the mainstay and
1989; M. Sandel, Liberalism and the Limits of Justice, Cambridge 19982; Id., Democracy's Discontent, Cambridge (Mass.) 1996).
22 Among various attempts made to introduce content into universalistic definitions of “human rights”, a
valuable contribution is Martha Nussbaum’s, who derived from Amartya Sen’s conception of “capabilities” (A. Sen, Commodities and Capabilities, Amsterdam 1985; or A. Sen, Well-Being and Capability, in M. Nussbaum and A. Sen (eds.), The Quality of Life, Oxford 1992; A. Sen, Inequality
Riexamined, Oxford 1992; more recently, Id. Development as Freedom, Oxford 1999) her own moderate- “essentialist” proposal which she qualified as “thick-vague”, according to which at least some basic human “functions” can be defined "essentially" (the ability to conduct a life without its being prematurely interrupted, the enjoyment of good health, being adequately nourished, avoiding needless suffering, the ability to co-exist with others, to play, to smile and so on) (The first attempt is in M. Nussbaum, Human Functioning and Social Justice. In Defense of Aristotelian Essentialism,
Political Theory, May 1992, 222).
23 I defend this cleavage in my book Dopo la certezza. Il diritto in equilibrio tra giustizia e democrazia,
Bari 2006, both in general terms and also with reference to different questions, such as the implementation of ethical programs into the standard scheme of compensation for wrongs, or tort law.
24 Cf. H.T. Engelhardt Jr., The Foundations of Bioethics, Second Edition, New York-Oxford 1996, 103
ultimate value of a “comprehensive” conception of a theory of ethics. 25 It has been in
fact suggested to separate content neutral from substantive autonomy: this latter type of autonomy is the priority value of an ethical project of freedom which puts it before anything else; the former by contrast does not stake a claim to values to be pursued, but only requires that a choice be made in conditions of autonomy.26
Within the framework which I adopt here, content neutral autonomy is obviously a prerequisite of a moral order, whilst substantive autonomy is a goal contained in a particular “worldview”, and in a word is an ethical problem. There is no doubt that the guarantee of the conditions which permit human beings to remain able to exercise their capacity as moral agents is a presupposition of every effective ethical choice; recognising in this sense that human beings have the “right” to “consent” is a question of justice towards all people and therefore a moral question. This involves an obligation which, considered in itself, stands over and above any chosen ethical context.
Thanks to this conceptual distinction, we may assert that once the “consent” of the right holder has been ensured, from the viewpoint of a theory of human rights dedicated to identifying that which is due to a human being, the accepted or “permissible” ethics could be particularly varied. This would be guaranteed by the separation between the meanings of autonomy, which is without doubt of particular analytic importance. But as I shall argue below, it is understood in this sense at the risk of becoming unrealistic. “Autonomy" itself can be understood from a communitarian standpoint above all in relation to the values, substantive ideals and personal goals for whose achievement it is exercised. As Carlos Nino observed, nobody ultimately "has as his end to be autonomous, rather to exert his autonomy for such and such end"27.
Whoever understands the meaning of autonomy in content neutral terms must nourish some perplexity at least in respect of those ethics (or ethical choices) which de
facto jeopardise some very basic conditions of respect towards human being, or rather
the very same content neutral autonomy. Those conditions are in fact prerequisites of “agency”, and ground the capacity to choose from ethical goals, and should therefore be safeguarded in abstracto by (and within) each and every ethic.
The struggle for human rights often avails of the critical value which they possess with reference to ethical-cultural traditions with which they clash. But seen in this light, which is by the way their best light, as a weapon of principle, a “content neutral” resource and neutral-universal criterion, human rights may on the one hand aspire to a consistently categorical and deontological character, whilst on the other hand, and precisely for this reason, cannot (in contrast to what is sometimes believed) in any way lend themselves to a teleological struggle, nor participate in it: i.e. proposing themselves in the place of different goals or values socially pre-chosen ethics attempt to
25 Engelhardt’s theory is particularly revealing; he writes that "to make any value, including the value of
freedom, the cardinal value is to endorse a particular ethic. Valuing freedom does more than elaborate and justify the fabric of morality itself” (The Foundations of Bioethics, cit., 105-6).
26 Marilyn Friedman, Autonomy, Gender, Politics, Oxford ( OUP) 2003 , 190 et seq.
satisfy. Human rights in fact place themselves at a different level, heterogeneous in relation to that of ethical, cultural or political ends.
On this plane we rather posit fundamental rights, and this is certainly not on merely nominalist grounds. If we think that some rights must be fundamental in a social system, our problem then becomes that of determining the internal ethical conditions and operating within the scale of values actually adopted by the institutions. Here the question is also political, and it concerns no longer simply the idea that individuals must have a (neutral) capacity of choice. The important point is that the system be able to give institutional protection to choices and above all to their results.
This means that the theoretical responsibility of fundamental rights is linked to an ethical understanding of the institutional depth which is often taken as a point of reference, whilst the theoretical responsibility of human rights on the moral plane is more simply independent from the inclusion of those rights into collective goals, but rather depends on their ethical purity and “independence”.
It is clear that the less dramatic the situation, the more complex is the obligation to operate a material conjugation of rights in contingent circumstances: an intervention to halt the genocide in Rwanda should not have been such a complex decision at the ethical-institutional level, before such an overwhelming tragedy, a civil war without quarter involving unending massacres of children, women and men. A government of “peace” would be a different thing altogether: this would lead to a rise in complexity, with the problems of “implementation” and contextual and ethical-political problems becoming extremely delicate and prioritary. Thus for example these issues require a great sensitivity, in particular as one must (because in certain circumstances one can) give consideration to the consequences of intervention: as Amartya Sen observed in 1994, the methods which Western imperialism used to confront the problems of local populations should appeal to the reasonableness and collaboration of human beings, whereas choices such as that which gave priority to policies imposing a strict discipline in family planning issues in the Third World, instead of prioritising health care or education, ended up having negative effects on the welfare of individuals and reducing their freedoms.28
In any case, the ethical-institutional depth of the problem weights on whomever wants to implant “rights” into the ethical fabric of others (or indeed into one’s own). We may accept that human rights are conceptualised in such a way as not to progress beyond minimum conditions: but if these conditions have a bearing on the distribution of institutional power, for example by restoring independence, the absence of domination and autonomy to women, the resulting distortion of common ethics is a catalyst for political conflict. It is not that by restoring the ability to choose to weak individuals in any given society a political power struggle is precipitated, without precipitating in the mean time a far-reaching revision of shared ethical priorities (as for
28 See A. Sen, Population, Delusion and Reality, New York Review of Books, September 22, 1994, 62 et
example Michael Ignatieff appears to argue). On this view, human rights, as a thin morality, may require de facto the acceptance of an alternative ethics, before (and beyond) any choice over political strategy and collective goals. This leads to a notable drift from the philosophical plan of human rights to that of fundamental rights, ethically connoted as such and imposing consistent institutional or systemic responsibility.
However, the recognition that the “imposition” of human rights implies the courage to identify and resolve also “political” questions is not enough. This recognition, regardless of the degree of realism it displays, contributes to conceal a problem which afflicts “human rights”, namely that they can use politics as a way introducing themselves into a given social context by exploiting the important logics of “power”, and therefore operating politically. But the process of bargaining with “power”, a point on which even Ignatieff insists, does not guarantee against any potential arbitrariness and the incisiveness of interventions in the forms of social life and in pre-existing identity-based practices. Even the “democratic” or pacific garb of the contracted consensus may be able to divert attention from, and hence conceal, responsibility for the often dramatic consequences flowing from the “political” arrival of the new rights, from the salvific epiphany of the “power of human rights”; the responsibility to those who endure the – at times caustic – law of rights. It may well be the case, and it often is, that the latter ubi desertum faciunt, pacem appellant: their albeit “political” affirmation might produce a “lunar” situation, a situation of ethical destructuration and of collective disorientation in which, following the breakdown of the preceding pivotal points, individuals are not able to recognise their own “life form”. In the light of these observations, I shall in the following paragraphs elucidate on a series of circumstances, from the accommodation of cultural groups in liberal societies, to the protection of the citizenship rights of women, from individual discrimination to the preservation of the values of a community, from the protection of the good of autonomy to that of the political participation of women: each of these striking dynamics cannot be accounted for using the abstract of individualist logic of human rights, but may be better accessible using the institutional concept of fundamental rights. In the conclusion I shall revisit the issues of the ethical or simply moral depth of rights, of their deontological or political character, and of the consequences which answers to these questions may have. I shall attempt to define the issue also invoking some critical observations of the work of Jürgen Habermas, to whom however must be recognised the most profound and powerful attempt to marry an individualist logic with a democratic logic of rights, thus avoiding any naive oppositions.
3. Abstract and neutral?
The forms of these dynamics of rights are somewhat complex and eloquent in multicultural societies. Here for example one of the most classic dilemmas arises,
which I hinted at in the preceding paragraph: it concerns the “sufficiency” of consent of the “weak” members of a non liberal community to endure conditions of subordination or social practices which appear to offend human rights, such as restrictions on education, marital choice, violations of the physical integrity of women in traditional cultural groups. Naturally, the argument of consent is often at the forefront, a variant on the maxim volenti non fit inuria. Solutions which justify the violation of individual rights by recourse to the consent of the injured party burdens the consent with a value of redemption: nonetheless, even as a question of fact, the nature of this consent and the ascertainment that it was effectively given, and finally that it was given by individuals in a condition to choose, throws up a range of fully valid interrogatives. But let us assume for the moment that consent is effectively given, is conscious, free, informed, mature, etc: it is in such cases that our dilemma arises. In what sense is the “permission” redeeming? In what sense is it possible to believe that one can consent to practices which violate human rights, be it those of fully aware adult women? I do not intend to engage here with the whole spectrum of debates which surround this case, but simply to evoke some persistent obstacles: for example, the notion of the “irrenounceablility” of some rights vested in the person, which could not be waived by “consent”. Consent does not in itself offer the solution to all problems. Why should respect for consent bear more weight than the protection of other goods implied by human rights (life, physical integrity, equality, dignity and so on)? Although a rejection of the sufficiency of consent often coincides with a (more or less “perfectionist”) paternalism, even where “consent” is over-valued, it is difficult to consider it to be immune from the viscous circle from which it arises.29
In a different light, it is important to consider whether the internal argument within the liberal theory of autonomy is that it effectively incorporates the right to do
wrong, to make irrational, “mistaken” or inconsistent choices.
Finally, on the collective plane of the relationship between liberal priorities (rights) and democratic priorities (self-determination): can the exercise of freedom of choice be consistent with the value which it protects if it is destructive? The
self-defeating exercise consists in the making of an ethical choice which leads to conditions
in which freedom of choice is definitively suppressed. It has the blessing of irreversibility.
But whoever underscores the priority value of autonomy does not appreciate the “moralistic” limitations on substantive choices effectively to be made, and clearly is suspicious of them. On such issues he or she will remain neutral. Moralistic limitations may indeed impact in ways which are unpredictable or too far-reaching, and even
29 On this last point, C. R. Sunstein (Designing Democracy. What Constitutions Do, Oxford 2001, 198)
observes that: “Even differences in desires, preferences, aspirations and values are in significant part a function of society and even law (…). Preferences are often adaptive to the status quo, and a status quo containing caste-like features based on sex will predictably affect the preferences of men and women in different ways. It will lead to distinctive processes of preference formation, inclining men and women in different directions in both the public and private spheres”.
cancel out effective freedom of choice: the start of a slippery slope. It is worth rejecting them, with justified intransigence, in order to favour the real availability of a right to choose, and the consequence of protecting the autonomy of women from unacceptable social and paternalistic meddling. However, there is also an uncalculated consequence: the elevation of consent to a legitimising and redeeming condition of traditional practices, subordination and violation of rights. But is it right that women “choose” social practices which place them in enduring and insurmountable circumstances of inferiority, in which they are no longer able to cultivate their freedom of choice?
Seen from the “collective” point of view of a democracy, it almost appears as if this were a legitimate exercise of self-determination; from the viewpoint of moral justice however it appears contradictory. Once an oppressive society which violates rights has been constructed, it would violate its own foundational presupposition by depriving individuals of their moral capacity (or rather of the conditions for expressing their own moral capacity through the choice of the conditions of their own existence). Assuming (but not accepting) that original consent (irrespective of how it is subsequently used) is sufficient to establish a “democratic” framework, a “liberal” society could not accept a choice with a “Hobbesian” content.
The truth is that not even a democracy could accept this; a democracy is an institutional asset endowed with temporal extension, and not a simply isolated deliberative act: it therefore requires that the conditions of the free and equal deliberating subjects be persistent in time.
Accordingly, the indifference of content neutral autonomy in relation to substantive choices to be made, the indifference of the moral question in relation to pre-chosen ethics is doubtful, if for no other reason than the self-defeating choices. From this angle, different ethics and cultures- although cannot be judged on the ethical plane- are also different in secondary outcomes with greater or lesser tendency to preserving those moral conditions, of justice, which could be recognised within a theory of human rights. The idea that not all ethics are morally “permissible”30 coincides with the notion
that not all cultures are morally admissible and entirely attainable within the limits of a society which translates respect for human rights into its own fundamental rights.
The important point now is that human rights in reality, for that which they are, namely a pure grill of criteria for the recognition of humanity, do not exist. Moreover rights can only exist within a particular ethical (or political) framework. In other words justice is a moral concept, but it is never encountered on its own; its deontological tone is devoid of ethical goals, of teleology towards particular ends and belongs to an imaginary society which does not exist: this is because each society clearly is not a sterile place for relationships of mere justice. Every society constitutes an ethical order. The morality of human rights is only visible ex ante: it can be understood as the
30 John Rawls has given an explanation of this within the domain of his own conception of “political
justice”. The clarification of the idea within that context is nonetheless helpful, and was given in great detail since John Rawls, The Priority of Right and Ideas of Good, in Philosophy and Public Affairs, 17, 1988, 251-76.
patrimony of transcendental faculties with which we encounter experience, or perhaps in a Kantian sense, as the totality of conditions of practical reason which are necessary for coexistence. But in reality these are wedded to social structures in which rights are articulated materially and become intertwined with prevalent opportunities, freedoms, cultural availability, the resources available to individuals, legal orders, political organisations, traditions and customs. Considered in concrete form, rights which take on an effective function in political society and within the legal order are already
fundamental rights, they are endowed with this ethical depth and are subject to
transformations or drift, are dynamic and not static, and can only be articulated by physically live voices in culturally connoted situations.31
But this movement towards fundamental rights is also the movement of “justice” in itself to justice in history. The contribution of the feminist literature in this context has been particularly instructive: the critique of the Kantian notion of moral justice has been stringent and directed towards the impossibility of realising notions such as impartiality and universality. And the fact that the father of the contemporary theory of justice, John Rawls, did not take sufficient account of problems of “gender” has been considered as a weakness, the lapse into the abstractness of de-contextualising debates, at least with reference to sexual difference.32
4. Fundamental and concrete.
The notion of fundamental rights, if distinguished from that of human rights, can be useful in providing a better, and separate, representation of the philosophical space (and the notion of justice, or of morality), which should be earmarked for human rights thanks to the status of human rights theories, as well as the institutional space of rights. I have argued elsewhere33 that fundamental rights are to be understood as encompassing
those selective and substantive criteria which, together with others, enable judgments of “validity”: the recognition of belonging to a legal order, legitimacy, compatibility of institutional behaviour and norms within a given legal-political system. If some
31 In this sense, Michael Walzer’s suggestion (Thick and Thin: Moral Argument at Home and Abroad,
Notre Dame (Ind.) 1994) – according to which “thin” expressions of morality may be articulated but inevitably commence from a self “situated”, and connoted within a “thick” morality – might be accepted.
32 S. Benhabib, Die Debatte ueber Frauen und Moraltheorie- eine Retrospektive, in C. Kulke, E Scheich
(ed), Zielicht der Vernunft: Die Dialektik der Aufklaerung aus der Sicht von Frauen, Pfaffenwieler 1992, 139-48; S. Okin, Women in Western Political Thought, Princeton 1992, II.; Id., Justice, Gender,
and the Family , New York 1989. Although Okin does not believe so much useful to presume that the logic of justice is male (this presumption is normally referred also to the logic of rights, by those who assert that only the ethic of care and relationship is female: for example Carol Gilligan). According to Okin, and other writers, the point is that the effort of contextualisation is completely undeniable: once again this is because there is no logic of justice without a material place in which it must function. If a lesson is to be drawn from this, it is that rights have an ethical and hence situational meaning, but their justice- structure can only be premised as a conceptual framework. Besides, it is important to guard against ethics without (moral, not social) justice.
individual “rights”, such as that to life, freedom of thought, equality before the law, the right to the personal pursuit of happiness, are effective within a legal system, this means that they are used every time it is necessary, and even for rejecting or pre-empting legal norms at any level that are capable of violating the substance of those rights. The capacity of “fundamental” rights to be effective is therefore a quality which they possess by definition: but it does not depend only on the existence of legal remedies, but rather more deeply on the possibility of their playing a role which, within a general theory of law, is that of fundamental meta-norms of “substantive” nature (i.e. not simply “procedural”).
We may, in passing, note the corollary thanks to which, if such rights are indeed fundamental, they protect individual goods deemed “fundamental”; and finally the further consequence that, if they are goods deemed to be fundamental, then they are protected, fostered and pursued with the available means as principal objectives not only of the courts but also of all institutions, including strictly “political” institutions. Their fundamental character for an institutional system is descriptively recognisable from the function attributed to them and the “attention” dedicated to them. As noted above, the concept of “fundamental” has some utility only if it does not coincide with the concept of “human” rights. “Fundamental” relates therefore to a system and implies affiliation and relevance.
Naturally, we may have recourse to this conceptual separation even where there is doubt as to the universal nature of some “human” rights. One may doubt whether the right of human beings to pursue happiness according to a purely “private” model is
effectively susceptible to universal consent. Some conceptions of human beings do not
contemplate this “right” in their own catalogue. But there is also a different lack of universality which takes place not in theory but in fact: this right may be is not “fundamental” for some legal-political systems – including Western liberal-democratic systems – and within the institutions of those systems. One could also doubt whether this right to the pursuit of happiness is effectively “fundamental” and included among the substantive principles of the Italian constitutional order.34
Function, affiliation and relevance are the requisites which identify a right as “fundamental” and clearly give witness in favour of the separation between fundamental and universal. On the opposite, it is not possible, and in fact it is contradictory, to argue in favour of any conception of human rights without positing their universality. Whoever celebrates a vision of “human” rights necessarily refers to all human beings. This has nothing to do with any readiness to recognise that others may hold a different view, or that there may be other and different theories of human rights. Universality is an inevitable prerequisite or an inevitable implication of the concept of human rights, whilst it is a wholly different matter to suppose that the theory of rights which each person proposes is, or should be, universally shared.
In this context, only theories of human rights may be afflicted by the tension between universal denotation – i.e. the reference to all human beings – and the particularism, as dependent on consent, of their own substantive claims: in relation to which they are even open to a possible universal dissent.
This certainly does not happen with fundamental rights. On the one hand they make no claim to universality, whilst on the other hand presuppose consent – or “recognition”. That consent is a condition of their “existence”: of course, not necessarily over the whole planet, but within a given system.
As far as fundamental rights are concerned, they may carry out reflections that are less exposed to “prescriptivism”: it is possible coherently to adopt a cognitive and non normative stance by asking which rights operate as criteria for substantive convalidation, or as meta-norms for the recognition of validity, within a given system. It is an operation which has possible performative implications, but its status is nonetheless scientifically legitimate, analogous to that of descriptive sociology, or an “ordinary” check of valid and efficacious law, etc.
Since there is a substantial difference between systems in which individual rights are enjoyed and systems in which such rights are denied categorically, when some rights are “fundamental” this means that the legal-political system has embarked on a journey capable of progressing towards liberal democracy. Within this type of system it is plausible that conceptions of human rights may interact with one another and that philosophical auspices may translate themselves into new “fundamental” rights, capable of “acceptance” and capable of fulfilling that positive function of criteria of recognition to which I alluded above.
If we use this latter conceptual distinction, which I have set out above, we may for example argue that on the international level the contest between human rights and political systems which deny them is a difficult dynamic because it evolves into a asymmetrical struggle between mere philosophies (of human rights) on the one hand and on the other hand pregnant institutions (within which there may or may not be fundamental rights), entities which operate on different levels.
The philosophies of human rights are different with respect to “real” political and social systems. They limit themselves to preaching the inherence of given claims in human beings: this is their philosophical status. This is why the category “human rights” taken alone is not enough. There is a further issue: what would happen to a
social system if it attributed a “fundamental” character to those rights, how could a social system be possible which protected such claims?
It is precisely because rights (or the same rights) are not fundamental in any system, that the struggle for their affirmation is a complicated question, because it presupposes, alongside a philosophy, an awareness of social structures, institutional questions and the capacity to act on “systems” in such a way as reasonably to produce (that is really to produce, and not at the cost of ruat coelum) an elevation of rights to
basic pillars of legal legitimacy, to criteria for the substantive legitimation of behaviour35.
Here, in other words, the inadequacy of visions of human rights which exceed their own philosophical space becomes apparent, through their demands for a resolute “justiciability” (the lack of which they then criticise, almost as if the problem could be resolved by the action in courts). Assuming that it is possible to operate a clear distinction, neither cases of totalitarian oppression of a people coerced by arms, nor cases in which traditions of life and thought are simply repugnant by rights, could be resolved through the institution of Tribunals. The latter alone can never make the pure rationality of rights effective within a system which overall follows a different social (ir)rationality. The power of human rights supported by the sole rationality of judges is at the end just metaphysical. The insufficiency of a right-based rationality, as such, has been many times underscored: the most significant example is the transformative process of Eastern European countries in the ‘90ies. What makes rights effective is their elaboration within the fabric of political ethics of the countries, within the whole functioning of the system, thus not just the Court but also the development of a democratic culture.36
In conclusion, whoever really holds dear human rights and accepts some kind of theoretical description, must then so to speak reason from the inside: he must therefore keep for himself the abstract weapon of human rights as a key to justice and move instead from the prevailing ethic, whatever the latter is. When rights become fundamental in a legal order then they de facto no longer belong within a theory of morality, but to an articulated system of ethical priorities. The judicialist rationalism of human rights however ignores this aspect of the question.
5. Rights and multicultural societies
It is important to return to the contrast between cultural rights and the indirect consensus which through their protection a liberal state would appear to offer to eventual violations of human rights which the “protected” culture made. This obviously ties in to the heated debate between human rights enshrined in the constitution of a liberal-democratic state, and the debilitating practices of some cultural groups towards their own members, in particular women. At a more general level the question has also
35 As argued by Flavio Baroncelli, Le quattro indegnità dei liberali irresoluti, Teoria politica, XVII, n. 3,
2001, 31. Were we able to convince “all Indonesians that the rights set out in the various international declarations and conventions must be guaranteed for all”, we would discover that once we set about doing it “there is no longer any possibility for Indonesia to develop itself economically without external help on account for example of those rights of workers and children, of which there was no trace when the West began to develop itself”.
36 For similar comments on Eastern European countries, B. Ackerman, The Future of Liberal Revolution,
New Haven-London 1992, 99, 100 ff. ; S. Holmes, Constitutionalism, Democracy, and State Decay, in H. Hongiu Koh, R.C. Slye (eds.), Deliberative Democracy and Human Rights, New Haven-London 1999, 131.
been posed in terms of the possibility or not of protecting minorities of minorities.37 But I believe that in this context the question has been posed in such a way as to engender misunderstanding.
The problem does not depend on the tension between internal majorities and minorities within cultural groups, or alternatively the question of having a “voice” within a potential democracy. It rather concerns a distribution of power and a division of roles which substantially negates the recourse to the democratic rule of the majority; it is the idea of equality which underpins the “democratic” use of majority rule which is missing, and therefore also negates and banishes the very concept of minority.
This very situation is in fact sub iudice: how can a liberal-democratic society cohabit with internal groups and communities which, to say it in the language of our Constituent Assembly, do not possess a “democratic” status and are structured in such a way as to deprive the “free exercise of deliberation” or the “public” autonomy at its very heart of any meaning? And moreover, how can debilitating cultural conditions be overcome which prevent interested parties (the “potentially interested” of liberal public reason) from having competing or dissident opinions and from making a valid contribution in the common arena?
On the other hand, even if we admit that we are rather looking at a community in which individuals are effectively able to choose (thus shifting the analysis from the substantive and procedural conditions of “consent” to the merits of collective choices actually made), the question does not appear any less thorny: the results of these choices, occurring “internally” within single communities, may be considered as intangible, and immune from the scrutiny of the broader social system to which the communities belong? Can cultures and practices of minority communities be reduced to quasi-private exercise of non-public liberties, and therefore inherent in the private sphere (albeit as groups), as such of no interest for the overall order of public institutions of the host society?
As a matter of principle, the first issue to address is how to reconcile “cultural rights” (group rights) with the individual rights of single members where particular traditions, for which some type of protection is deemed necessary, are evidently harmful for the latter.38 A more concise description of this dilemma is found in the title
of the famous and much debated essay of Susan Okin: Is multiculturalism bad for
women?39
37 I.e. an internal minority within a community which in turn constitutes a minority in a Western society. 38 The problem, according to Ayelet Schacar is as follows: “Multicultural accommodation presents a
problem (. . .) when pro-identity group policies aimed at leveling the playing field between minority communities and the wider society unwittingly allow systematic maltreatment of individuals within the accommodated group—an impact which in certain cases is so severe that it can nullify these individuals’ citizenship rights. Under such conditions, well-meaning accommodation by the state may leave members of minority groups vulnerable to severe injustice within the group, and may, in effect, work to reinforce some of the most hierarchical elements of a culture” (A. Shachar, Multicultural
Jurisdictions. Cultural Differences and Women Rights, Cambridge 2001, 2-3).
39 The paper originally appeared in the Boston Review in 1997 and also in S. M. Okin and Respondents:
The point in fact is not just that existing “cultural rights” (guaranteed by liberal-democratic States) allow violations of human rights within the protected areas of single communities: but that rather those violations of individual “fundamental” rights occurs accordingly in the general, state legal order. Which socio-legal system can allow itself to protect cultures and practices which within themselves trample on fundamental rights of the legal order (to which they belong)?
The real protagonists of the conflict are not human rights, but fundamental rights: in fact, they are the minority “groups” on the one side and the majority in the liberal-democratic “state” on the other. Here the majorities protect individual rights, whereas the minorities do not. Both sides – the groups and the state – are in disagreement regarding that which is owed to individuals, and therefore about human rights; but this would remain a purely philosophical debate, were it not for the fact that the contrast consists in the institutional detriment which a system could bear in the event of derogations from its own “rule of recognition”, that is from “fundamental” rights (which belong to its substantive criteria).
Philosophies of human rights are capable of resisting these frustration and disappointments. Their violation is therefore not a reason for the collapse or unacceptability of their pretensions. The “violation” related to the respect for fundamental rights is however completely different in nature, and unleashes a crisis: crumbling of the sphinx before the solution to the riddle. The proposition that some rights are “fundamental” within a particular system is descriptive, and cannot in truth be “violated”; any presumed violations or derogations constitute proof of the falsity of the proposition.
Rights are fundamental if their normative ideals are effectively used as criteria of recognition of the validity of legal norms and of relevant institutional practices. In a certain sense, constituting substantive criteria of public life, fundamental rights also select accepted cultural rights, including the very possibility of affiliation for groups which are right holders within the system to which they appeal and in which they demand protection.
This means that the situation becomes somewhat critical in which by contrast the social conventions of a (limited) “cultural” group seek to define on their own which fundamental rights are valid as substantive meta-norms.
The legitimacy of patriarchal social practices which traditionally subjugate women and rigidly impose roles on them, cannot receive direct recognition within a
However, Okin herself returns to this article also as a response to the misrepresentation of her positions, in particular those of Ayelet Shacar (loc. cit.). Significantly Okin’s paper, presented in a seminar of the American Political Science Association of 2002, is entitled Multiculturalism and
Feminism: No Simple Question, No Simple Answers, available at:
http://www.law.nyu.edu/clppt/program2003/readings/okin.pdf. Susan Okin, who died recently, at the peak of her talents, offered a valuable contribution to political theory, reincorporating feminist thought into an understanding of the classics, rejecting all stereotypes, and placing it at the centre of the contemporary philosophical debate with passion and above all with a rare balance.
liberal-democratic legal order, not even by hiding this aim under the defence of self-determination and ethical autonomy of a minority ethnic group.
Normally, the most insidious forms of discrimination or subordination, are those which do not come see the light of day in courts (in the realm of “justiciability”), but which perpetuate themselves through collective day-to-day behaviour based on rules internal to families and groups, at time religious in nature. These rules prevent the emergence of a “formal” problem and an open conflict between claims to protection of individual rights and de facto contravening practices.
Opposing this tendency does not by any means imply reciting an apology for the social majority which dictates arrogant conditions: here it is not the profile of democracy which is in discussion but that of rights. And it does not end here: the important point is that the subjective right of the individual within a protected minority group passes into the background. Once again, the democracy of the majority displays a much more benevolent face towards the individual than the minority group to which he belongs does or is able to. But this is a contrast the results of which are unpredictable and changeable.
The famous Shah Bano case is eloquent testimony to this. Rejected by her husband in 1975, the seventy-three year old Shah Bano was obliged in 1978, in order to survive, to apply to the courts for a maintenance order, applying article 125 of the Indian Code of Criminal Procedure40. The multicultural tension unfortunately led to a
defeat for women.41 As has been observed, after a long and ultimately vain struggle,
Shah Bano was confronted with a tragic ‘your culture or you rights’: and she felt obliged to confirm her own loyalty to the nomos to the detriment of her citizenship rights.42
40 The husband – who immediately divorced her unilaterally by the talaq foreseen under Islamic law on
the status of persons – contested her application and brought the case before the Indian Supreme Court. The Court applied article 125 of the Indian Code of Criminal Procedure even concerning the
status of persons falling under the Shariat (Islamic religious law) since it was bound by the Indian federal constitution; in passing judgment it spoke in favour of unifying civil law, and eliminating the difference in sources. Naturally, the problem of the prevalence of the one or the other source of law was connected to the respect or not of religious autonomy within the Islamic communities. These communities inseparably linked their religious convictions with their personal lives and with the legal regulation of marital relations. Following a 1937 decision of the British colonial courts, cases similar to that of Shah Bano had to be decided under Islamic law; on the other hand, according to another law of British origin, article 125 of the Code of Criminal Procedure, the lady’s claim had to be accepted in order to prevent vagrancy and its consequences. The Indian Supreme Court denied that it was possible to avoid the obligation to pay maintenance, and confirmed the necessity of supporting a category of persons who would otherwise be unable to support themselves, that is to satisfy their elementary needs: also a collective interest in relation to which the particular religion practised cannot make any difference. In the ideological debate which followed, the system deferred to parliament the burden of providing a definition: with the enactment of the Muslim’s Women’s Bill in 1986 parliament denied divorced Muslim women rights of action to claim maintenance rights, since this burden should be borne by the original family or by charities.
41 Commented in S. Benhabib, The Claims of Culture. Equality and Diversity in the Global Era,
Princeton 2002, 93.
42 Shacar, Multicultural Jurisdictions, cit., 83. In effect, it is as if the individual were crushed between
